August 10, 2012
When Tenure Doesn't Mean Tenure
Kendall Issac (Appalachian) posts on the recent Sixth Circuit Branham case on his Workplace Dignity blog (it includes a link to the decision). The basics are that a tenured Cooley law professor was fired, allegedly without just cause. Kendall provides a good description of the case, as well the procedural and remedial issues at stake (e.g., Cooley didn't hold a required faculty vote on the firing until 3 years after it occurred). But I wanted to address the first part of the decision, in which the Sixth Circuit holds that "tenure" doesn't necessarily mean continuous employment with just cause protection.
The basis of the holding is the usual language that the employment contract rules the day. That contract incorporates the ABA's tenure policies and language stating that "[n]o tenured faculty member shall be dismissed . . . prior to the expiration of the term of his appointment, except for good cause shown and in accordance with the following procedure." Others know more about the ABA's policies, although I have doubts whether the ABA would agree with the court's interpretation that the policies only make continuous employment optional for tenured faculty (if I remember correctly, some deans even tried to push language to this effect a few years ago, without success). As for the quoted language, the court seems to rely on the fact that Cooley officially had faculty on one-year terms--hence no continuous employment.
As most readers are well aware, courts bend over backwards to avoid continuous just cause employment contracts all the time. But the court's disregard for the normal meaning of "tenure" still strikes me as troublesome. Before this case, did anyone at Cooley--administration or faculty--really think that tenured faculty could be fired at will at the end of any given academic year? I doubt it, or else what's the purpose of tenure? I know that at-will is king, but I think there's a good argument to be made that any reasonable interpretation of "tenure" means some form of continuous employment.
This brings me to another point: why did Cooley push this argument? In addition to possibly having problems during their next ABA re-accreditation, the school basically just spent a lot of time and money to "detenure" its faculty. I've got to imagine that Cooley will either change the language of its policies to make its tenure sound more like real tenure, or they will be facing a far more disgruntled group faculty.
Perhaps a good reminder to check your school's tenure policies . . . .
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I am Prof. Branham's attorney on appeal, so read what I have to say with that in mind. You have understandably taken the 6th Cir at its word in quoting the contract language. But where the court's quotation contains an ellipsis (which you copy as it appears in the opinion), words are omitted which actually reverse the meaning from that suggested by the court: "No tenured faculty member shall be dismissed, nor any untenured faculty member dismissed, prior to the expiration of the term of his appointment, except for good cause shown and in accordance with the following procedure." The second comma, in my opinion, is an obvious typo (or punctuation error) in the contract. But at least it creates an ambiguity that should have required the contract to be read in the employee/prof's favor, for several reasons - not the least of which is that it allows the word "tenure" to have its ordinary meaning. In other words, an untenured prof is protected only during the term of his contract, but a tenured prof is protected from unjust dismissal on a permanent basis. All of this was in the brief. None of it is acknowledged in the opinion. We will be filing for rehearing.
Posted by: Peter Goldberger | Aug 12, 2012 8:22:23 PM
Interesting Peter, thanks for the clarification. And good luck!
Posted by: Jeff Hirsch | Aug 13, 2012 7:46:20 AM